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Adoption: Issues And Challenges

The subject matter of this paper deals with the objectives of this research, understanding the adoption laws in India, challenges the religion-specific nature of adoption laws, understand lacunae in the law, and judicial proceedings relating to the same. The paper also deals with the necessity and importance of uniform law in adoption. Adoption as a practice is being followed for decades, but the law regulating it came in the 19th century.

India is a diversified country with various religions but as such, there is no particular law of adoption that governs the adoption of all the religions. Hindu adoption and maintenance act, 1956 is the only personal law till now that governs adoption, which covers under its ambit Hindus, Sikhs, Buddhists, and Jains.

In India other religions like Muslims, Parsis, Christians and Jews don’t have their own Personal law governing adoption because of which they cannot adopt a child. The only option left with them is to become a guardian of the child under the Guardians and Wards Act, 1890. The government made many attempts to make a Uniform law for adoption in which there would be no discrimination on the basis of religion but eventually failed in its attempts.

Introduction:
Adoption is basically the foundation of a parent-child relationship through means of a procedure that is lawful and social, other than the natural birth procedure. It is a procedure through which the child of the biological parents become the child of someone else through a lawful process which is thereby known as Adoption. Although there are some conditions that both the biological and the adoptive parent have to fulfill, the failure of which the adoption will be an invalid one[1].

There are conditions for both Who can adopt a child? And Who can be adopted?

Section 7 of HAMA defines that, any Hindu male, can adopt a child if he fulfills the following conditions:
  1. He is a major
  2. He is of sound mind i.e. must not be suffering from insanity or idiocy.
  3. He shall adopt any child only with the consent of his wife, if living at that time, In the case of divorce consent is not necessary but in the case of judicial separation, consent would be necessary.
  4. The consent must be obtained prior to the civil adoption takes place.
  5. If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding provision.

    In the case of Bholooram & Ors. Ramlal & Ors[2] the question raised was whether the consent of all the wives is necessary if a person has more than one wife living at the time of adoption?

    It was thus held that if a wife has absconded to an unknown place, it cannot be construed as her death in eyes of law unless requirements of Section 107 of Evidence Act is fulfilled. So long as woman continues to be a wife in eyes of law, her consent is necessary for validity of adoption under Section 7 of the HAMA.

As per Section 8 of the HAMA, 1956, any Hindu female, can adopt a child if she complies with the following:
  1. She is a major
    • After attaining the age of eighteen years, a woman gets the capacity to adopt even though she herself is unmarried.
    • Where after the adoption, she gets married, her husband would be stepfather and she herself would remain adoptive mother as earlier.
  2. She is of sound mind.
  3. In order to adopt a child she must be unmarried or in case if married, then her marriage should have been dissolved or her husband is no more or has completely renounced the world.
    Which therefore brings into place the gender biases in the adoption laws.
  4. Adoption by an unmarried can also take place despite the fact that she is having an illegitimate child. “[3]
These are the few conditions after qualifying to which a person is able to adopt a child and such adoption would be a valid adoption.

The conditions for who can be adopted are as under:
  1. he or she is a Hindu
  2. he or she has not already been adopted;
  3. he or she has not been married, unless there is a custom or usage applicable to the parties which permit persons who are married to be taken in adoption;
  4. he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years to be taken in adoption.[4]
India is a country that has an immense religious diversity, with each religion having its own sets of practices to be followed. In personal matters the Indian society is governed by the customs of the most important religions that exists i.e. Hindus, Muslims, Christian, and Parsis, the personal laws of which are found in their respective religious sources.

In India the conditions children are such that on the one hand, they have the right to pampered, taken care of, and to be provided with all the necessities for development, while on the other hand, there are many children in India who are being abandoned per year. In some unfortunate cases, the children become the victim of human trafficking and sexual violence, while in some fortunate cases the abandoned children are given the shelter of any adoption agency, which thereby gives the children a chance of second life. [5]

Laws Relating To Adoption In India
  1. Hindu Adoption and Maintenance Act, 1956 [6]
    In Indian Law, adoption is a matter of personal laws and hence is governed by various legislations. The adoptions in Hindu Law is governed by the Hindu Adoption and Maintenance Act, 1956 which thereby applies to all Hindus, that includes Buddhists, Jains, and Sikhs and excludes every person who by religion is Muslim, Parsi, Jew, or Christian. The person who qualifies to make adoption should be:
    1. Any male Hindu, who is of sound mind, not a minor and is eligible to adopt a son or daughter, but if the male has a living spouse at the time of adoption, the consent of his spouse is mandatory.
       
    2. Any female Hindu, who is not married or if married, her marriage has been dissolved or whose husband is not alive or her husband has been declared incompetent can adopt a son or a daughter.

      In case a biological child already exists in the family, then the adoption of the child of the opposite sex is allowed. Where there International Journal of Law is the adoption of a male child by a female, then the female shall be at least 21 years older than the son. Where there is an adoption of a female child by a male, then the male shall be at least 21 years older than the daughter. The adopted child has the same rights as the biological child. Adoption under this Act is irrevocable.
       
  2. Guardians and Wards Act, 1890 [7]
    In India there is no general law for adoption and the personal laws of the persons who follow religion that includes Muslims, Christians, Parses, and Jews, does not recognize the concept of complete adoption. Under this Act, the person who is desirous of a child can become a guardian of the child until it comes to 21 years of age. However, this act does not provide any adoptive rights to the guardian and the only relationship which exists between the child and the parent is the Guardian-Ward relationship. Unlike the Hindu Adoption and Maintenance Act, 1956, this Act does not confer the status of the biological child on the child so adopted.
     
  3. The Juvenile Justice (Care and Protection of Children) Act, 2000 [8]
    In order to safeguard and protect the interests and welfare of the children who are in need of care and protection, the parliament of India passes the Juvenile Justice (care and protection) Act, in December 2000. Some Amendments have been made in the existing Act of 2000 to show greater sensitivity to the needs and rights of children. The Juvenile Justice (care and protection) Act, 2006 was introduced with the objective to give adoptions in a child-friendly approach. It widened the definition of ‘child in need of care and protection’ by including ‘abandoned’ and ‘surrendered children’ and ‘a juvenile found begging’, ‘a street child’ or ‘a working child’. Under this Act, there is no bar to religion for adoption. The provisions of this Act apply to all Indian citizens.
     
  4. Central Adoption Resource Authority (CARA)[9]
    “CARA is an autonomous body under the Ministry of Social Justice and Empowerment, Government of India. It was set up on 20th June 1990, to deal with all the matters concerning adoption in India. Its function is to mandate and regulate both in-country and inter-country adoption of children in India. CARA is designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993, ratified by Government of India in 2003. CARA primarily deals with adoption of orphan, abandoned and surrendered children through its associated recognized adoption agencies.”
Adoptions among the different religions in India there is no general law for adoption, it is regulated by the personal laws of the community. Among Hindus adoptions are regulated through the Hindu Adoptions and Maintenance Act, 1956. The Act does not cover adoptions for Muslims, Christians, Parsees, and Jews.

These communities do not have personal laws for adoptions except a section of Muslims. The other communities indirectly invoke The Guardian and Wards Act, 1890 to obtain guardianship of the child during minority, but do not deal with adoption as such.

Adoption Under Hindu Law
The Shastri Hindu Law considers adoption as a sacramental rather than a secular act.

The Supreme Court has observed that the objects of the adoption are twofold:
  1. The first object was religious, i.e., to secure the spiritual benefit to the adopter and his ancestor, by having a son for the purpose of offering funeral rites and libations of water to the means of the adopter and his ancestors;
  2. The second was to preserve the continuance of one’s lineage.

“Presently, the adoption under Hindu Law is governed by the Hindu Adoption and Maintenance Act, 1956[10]. It only applies to Hindus, defined under Section-2 of the Act, and includes any person who is Hindu by religion, including Buddhists, Jains, and Sikhs and to any other person who is not a Muslim, Christian, Parsi, or Jew by religion.

It also includes any legitimate or illegitimate child who has been abandoned both by his father and mother or whose parentage is unknown and who is in either case brought up as Hindu, Buddhist, Jain, or Sikh. Before the commencement of this Act, the only male could be adopted but after this Act was introduced a female may also be adopted.”[11]

Judicial Analysis
  1. Jijabai Vithal Rao v. Pathan Khan[12]
    In this case, the honorable Supreme Court held that when the father was alive but was living separately for several years without taking interest in the affairs of the minor child who was then in care and keeping of the mother, It was held that the father should be treated as if non-existent and therefore, the mother could be designated as the natural guardian of the minor‘s child as well as the property.
     
  2. Shabnam Hashmi v.Union of India[13]
    In this case, religion was considered as no bar for adoption. When it comes to adoption it is regarded as a very important case in the history of India. In this case, the petitioner was a Muslim who had embraced a young girl when she was a little girl. She requested recognition of the right of an individual belonging to any religion to adopt a child because the Muslim law did not allow adoption. Further in regard to this case, a three-judge bench of the Supreme Court comprising of the then Chief Justice P Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh J.J decided that this case dealt with the right to adoption by virtue of the juvenile justice Act, 2000, the Rules of amended act i.e. 2007, and the CARA guidelines.

    It was asserted by The All India Muslim Personal Law Board that adoption was only one of the techniques envisaged under the Juvenile Justice Act, 2000 and Islamic Law that did not recognize the idea of adoption. They objected to Thai Islam for not recognizing adoption, but rather acknowledging Kafala’s notion that was quite comparable to adoption. The Supreme Court ruled that the. Juvenile Justice Act was meant to enable law and seeks to achieve a Uniform Civil Code objective. Thus, it was held in the case, that any individual belonging to any religion could adopt a mies-framed kid. It hesitated but acknowledged the statutory right to adopt on the point of giving Adoption the status of a fundamental right.
     
  3. Sawan Ram v. Kalawanti,[14]
    “In this Supreme court case, the deceased had died leaving behind a widow and at the moment of his death, his several properties and some parts of the estate had been mortgaged to another individual by his widow and some had been given to his grand Niece. The appellant lodged a case on the ground that mortgage and property transfer was illegal since the appellant was the deceased’s closest relative and the property should be granted to him. The widow then during the pendency of the case, adopted a child and thus the litigation failed.

    The appellant again filed a case, after the death of the widow regarding a share of the estate on the ground that the adoption was fictional and had not been granted property rights by the government. In this case, it was held by the court that adoption by the Hindu woman whose husband is dead, would be considered a part of the deceased husband’s family not only for herself. While the adoption of the adopted child loses all rights to his biological family, the same rights are to be substituted by comparable rights in the adoptive family, so he would be granted privileges as an adopted husband’s son to a member of that family. Therefore the case lodged by the appellant was dismissed.”

Conclusion And Suggestions
It could be thus concluded that, unlike the Hindus, Christians, Buddhists, and Sikhs, the communities consisting of Muslims, Parsis and any other community cannot take a child into adoption, as they don’t have any personal law governing adoption. Adoption is a process by which a kid gets parents and a parent devoid of a child gets a child.

After the adoption is done the adopted child gets full rights in the home of adoptive parents, gets a share of the property similar to as of biological child, and has no rights to interfere in the affairs and property rights of the biological parents. Also once the adoption is made it is final and cannot be revoked in any case. The Hindu Adoption and Maintenance Act, 1956 deals with all the provisions related to adoption and impose conditions upon a person, only after fulfilling of which a child can be taken into adoption by a male/ female/ or both. It is clearly defined in the act who can adopt a child, and who can be adopted.

After the analysis of the HAMA, it’s quite clear that some provisions of the act are biased towards women, as it doesn’t allow a Hindu married women to take a child into adoption even with the permission of her husband, while on the other hand, a husband can do so with the permission of his wife.

This provision somewhat proves discriminatory against women, well there are many advancements and improvements in this act but this gender bias still prevails in adoption laws. Along with the eradication of gender bias ness, there is a need for uniform laws for adoption so that there would be no discrimination in adoption on the basis of religion and there could be equal status and equal rights for all.

References
Books:
  1. Family Law I
    Prof Kusum, Family Law I, 4th Edition 2015, LexisNexis Publication, Haryana.
  2. Mordern Hindu Law
    Dr. Paras Diwan, Mordern Hindu Law, Edition 2016, Published by Allahabad Law Agency, Faridabad.
Bare Acts:
  1. Hindu Adoption and Maintenance Act, 1956
  2. Guardian and Wards Act, 1890.
  3. The Juvenile Justice (Care and Protection of Children) Act, 2000
  4. Central Adoption Resource Authority (CARA).
Articles And Journals:
  1. Adoption Laws in India.
    https://lawtimesjournal.in/adoption-laws-in-india/ accessed on 01/02/2020 at 10.29 am
  2. Child Adoption in India: A Comprehensive Study.
    http://thelawbrigade.com/family-law/adoption-law/child-adoption-in-india-a-comprehensive-study/ accessed on 01/02/2020 at 10.37 am.
  3. Legal Framework governing Adoption Laws in India https://www.lawctopus.com/academike/legal-framework-governing-adoption-laws-india/ accessed on 01/02/2020 at 10.57 am
  4. Child Adoption in India: Issues and Challenges.
    https://acadpubl.eu/hub/2018-120-5/4/358.pdf accessed on 02/02/2020 at 03.00 pm.
  5. Analysis of law on adoption in India. https://www.latestlaws.com/articles/analysis-of-law-on-adoption-in-india-by-ekta-kumari/accessed on 31/01/2020 at 01.34 pm.
  6. Adoption Laws in India: Challenging Existing Laws.. http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf accessed on 04/02/2020 at 10.23 am.
  7. Transnational Hindu Law Adoptions: Recognition and Treatment in Britain https://www.researchgate.net/publication/228159216_Transnational_Hindu_Law_Adoptions_Recognition_and_Treatment_in_Britain accessed on 04/02/2020 at 10.23 am.
  8. Adoption: Indian and International Aspect. http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue7/Version-3/H2207034649.pdf accessed on 04/02/2020 at 10.23 am
End-Notes:
  1. Child adoption in India: Issues and Challenges. https://acadpubl.eu/hub/2018-120-5/4/358.pdf accessed on 31/01/2020
  2. Bholooram & Ors. Ramlal& Ors, AIR 1989 MP 198
  3. Hindu Adoption and Maintenance Act, 1956
  4. Ibid
  5. Analysis of law on adoption in India. https://www.latestlaws.com/articles/analysis-of-law-on-adoption-in-india-by-ekta-kumari/accessed on 31/01/2020 at 01.34 pm.
  6. Hindu Adoption and Maintenance Act, 1956.
  7. Guardian and Wards Act, 1890
  8. The Juvenile Justice (Care and Protection of Children) Act, 2000
  9. Central Adoption Resource Authority (CARA).
  10. Supra note 6.
  11. Adoption Laws in India: Challenging Existing Laws.. http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf accessed on 04/02/2020 at 10.23 am.
  12. Jijabai Vithal Rao v. Pathan Khan, AIR 1971 SC 315
  13. Shabnam Hashmi V. Union of India, (2014) 4 SCC 1
  14. Sawan Ram V. Kalawanti, 1967 SCR (3) 687

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